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How Can You Avoid Sexual Harassment Liability?

One of your sales representatives alleges that her manager has been making inappropriate sexual advances.

The accuser makes a number of disturbing allegations. They include offering a promotion in exchange for a date, explicit text messages and lewd comments about the accuser’s physical appearance.

If the allegations turn out to be true, will your organization be held responsible?

Robert Cirtin Investigations, LLC has over 25 years of experience investigating sexual harassment cases and other employment-related matters. Based on that experience, here are some of the steps your organization can take to protect against liability for sexual harassment. 

Understand the Definition of Sexual Harassment

Most people agree that sexual harassment is wrong. But many are confused about exactly what it means. Does it include touching? Telling a dirty joke? Racy photos?

The Equal Employment Opportunity Commission (EEOC) has a few criteria for defining sexual harassment.  

  • Sexual harassment includes requests for sexual favors, unwelcome sexual advances or verbal or physical conduct of a sexual nature. 
    • The perpetrator may be a supervisor, co-worker, vendor or customer.
    • The harm caused to the victim may be economic, physical or psychological. 
    • Employers expose themselves to liability if they fail to establish and communicate a clear policy prohibiting such behavior.
  • Employers can be held liable if the victim can prove that submission to, or rejection of, such conduct was used to make employment-related decisions. Examples include hiring, firing, promotion or compensation.
  • Harassment also occurs if the conduct interferes with the victim’s work performance, or creates an intimidating or hostile work environment. The employer may be vulnerable to liability if the victim can show that management failed to investigate the claim or failed to discipline the perpetrator. 
  • The employer may also be held responsible if the accuser faces retaliation for filing a complaint.

Sexual Harassment Prevention

Protecting your organization begins with prevention. Make every effort to reduce the risk of unwanted conduct and promptly investigate all complaints.

  • Establish a written nondiscrimination policy that prohibits sexual harassment. The policy must clearly define what behaviors constitute harassment. 
  • Publish the policy in employee handbooks, and post it in conspicuous locations in the workplace. 
  • Make sure everyone in the organization knows the policy. This might include mandatory training for new hires and annual refresher courses for everyone. 
  • Provide multiple methods for filing a complaint, and more than one person who is authorized to receive complaints. For example, employees could report to a direct supervisor or a designated member of the HR team. Other options might include reporting harassment in person, on a paper form or electronically.
  • Establish formal procedures for investigating sexual harassment complaints. 

Sexual Harassment Investigations

The absolute worst thing an employer can do about a sexual harassment complaint is to do nothing. Every claim must be taken seriously and promptly investigated.

  • Investigate immediately. Consider hiring an independent investigator to ensure fairness and objectivity. Keep an open mind and don’t pre-judge the case until all of the facts are uncovered. 
  • Review your company’s sexual harassment liability policy and notify your insurance company. 
  • If the complaint alleges criminal conduct, such as sexual assault, encourage the accuser to report the incident to law enforcement. 
  • Maintain the confidentiality of the accuser and alleged perpetrator to the greatest extent possible. Make every effort to protect the accuser from retaliation. 
  • Encourage the accuser to provide the following information, if possible:
    • Name and job title of the alleged offender
    • Date(s), time(s) and location(s) of the alleged incident(s)
    • Name(s) of any witnesses
    • Effect of the conduct on the accuser’s job or ability to perform his or her job
    • Name(s) of other individuals who may have experienced similar behavior
    • What, if any, efforts the accuser made to stop the conduct
  • Look for corroborating evidence. This may include witness testimony, or documents such as time cards, meeting schedules, email or other correspondence between the involved parties. 
  • Document all evidence carefully. 
  • If the evidence supports the allegations, take appropriate disciplinary steps. These may range from a written reprimand for a first-time or minor offense, to termination for more severe violations. As noted above, report any illegal conduct to law enforcement. 
  • If the allegations are not supported, only discipline the accuser if there is evidence that he or she deliberately lied. Merely reporting a complaint is not a crime. 
  • After the investigation concludes, review your sexual harassment policy and make improvements if necessary. What changes would reduce the risk of this behavior happening again?

If your company is dealing with sexual harassment allegations, contact Robert Cirtin Investigations, LLC. Our experienced investigators will uncover the facts so that you can implement an appropriate response.

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